The Abuja Division of the Court of Appeal, on Wednesday, reserved its judgment on the appeal Governor Adegboyega Oyetola of Osun State filed to set-aside the tribunal verdict that sacked him from office. Oyetola Oyetola who was candidate of the ruling All progressives Congress, APC, is praying the appellate court to nullify the declaration by the Osun State Governorship Election Petition Tribunal, that Senator Ademola Adeleke of the Peoples Democratic Party, PDP, was the valid winner of the gubernatorial election that held in the state in September 2018. A five-man panel of Justices of the appellate court led by Justice Jummai Sankey, adjourned to determine whether the tribunal was right or wrong, after all the parties argued and adopted their respective briefs of arguments.

Aside Oyetola’s appeal marked CA/A/EPT/246/2019, the APC, through its lead counsel, Chief Akin Olujimi, SAN, equally filed a separate appeal listed as CA/A/EPT/256/19, wherein it prayed the court to hold that the tribunal went beyond issues that were brought before it by the parties. Similarly, INEC, in its appeal marked CA/A/EPT/259/19, sought the nullification of the tribunal’s judgment, while Adekele and the PDP, in a cross appeal with No. CA/A/EPT/295/19, challenged the minority verdict of the tribunal that upheld Oyetola’s victory. Other members of the appellate court panel that heard all the appeals on Wednesday were Justices Abubakar Yahaya, Ita Mbaba, Isaiah Akeju and Bitrus Sanga. Meantime, in his 39-ground of appeal, Oyetola, urged the appellate court to reverse the majority decision of the tribunal that voided his return as winner of the Osun governorship contest, describing it as “perverse”.

He challenged the powers of the tribunal to invalidate the outcome of the September 27, 2018, re-run election that led to his victory. Arguing through his lawyer, Chief Wole Olanipekun, SAN, Oyetola, insisted that it was wrong for a member of the tribunal panel, Justice Peter Obiora, who did not attend the entire proceedings of the tribunal, to deliver the lead judgment that removed him from office. For instance, he told the appellate court that though Justice Obiora was not present when the case was heard on February 6, and did not sign the record of proceeding for that day, he however included what transpired on that day in the lead verdict he delivered. “My lords he reviewed what happened on February 6, even when he was not there. Our position is that adjudication is not akin to video watching. It cannot be done by proxy”, Olanipekun argued. Both APC and the Independent National Electoral Commission, INEC, told the tribunal that they were in support of the appeal, even as they urged the appellate court to vacate the judgment that was delivered in Adeleke’s favour. However, Adeleke’s lawyer, Dr. Onyechi Ikpeazu, SAN, insisted that the appellants failed to adduce any evidence to prove their allegation that Justice Obiora did not attend all the proceedings. Besides, Ikpeazu noted that going by processes before the court, while Justice Obiora’s name was listed on the record of proceeding for February 6, his signature was however missing on the signature page.

“Looking at totality of the proceedings, there is obviously a conflict which cannot be resolved without affidavit evidence. It cannot be resolved against a judge who has not been given the opportunity to explain. “It is not a matter that an inference can be drawn from the Bar that the Judge was not there. They have failed to adduce any cogent evidence that Justice Obiora was not there”. More so, Adeleke’s lawyer argued that the Appellants failed to show how the alleged absence of Justice Obiora affected the substance of the judgment. “In a case where over 100 witnesses testified, they have nor proved how the evidence of two witnesses that testified on the day they contended that Justice Obiora was not around, rendered the entire judgment of the tribunal a nullity.

“The party on appeal must show an element of miscarriage of justice”, Ikpeazu argued. It will be recalled that the tribunal had in a two-to-one split judgment it delivered on March 22, upheld a petition that Adeleke and the PDP lodged against the declaration and return of Oyetola as winner, based on the outcome of the supplementary governorship election. INEC had at the end of an initial election it conducted on September 22, cancelled results from seven polling units in four Local Government Areas in the state, and ordered a re-run poll. However, in the lead verdict that was delivered by Justice Obiora, the tribunal, noted that none of the parties disputed the fact that it was the State Returning Officer that cancelled the initial election

The tribunal held that the State Returning Officer acted beyond the power that was allocated to him under the Electoral Act when he voided results and ordered supplementary election in the affected areas. “We hold that the cancellation was unlawful and ultra-vires of his powers.The cancellation cannot stand, being a product of illegality”, the tribunal held. Moreover, the tribunal said the onus was on Presiding Officers in polling units where alleged electoral infractions took place, to cancel the result and report same to Ward Collation Officers. It held that upon receipt of the complaints, the Collation Officer was mandated by the law to fill Form EC40G and submit to the Local Government Collation Officer who will in turn transfer the information in the Form EC40GI and hand same over to the State Collation Returning Officer.

The tribunal held that in the absence of evidence that it was Presiding Officers of the seven Polling Units that cancelled the results, the action of the State Returning Officer amounted to an act of illegality. Maintaining that the petitioners successfully established a case of non compliance in 17 polling units during the initial election of September 22, 2018, the the tribunal, went ahead and deducted votes that were credited to both PDP and APC in those units. Specifically, the tribunal, deducted a total of 2029 votes that was credited to APC in the 17 polling units, as well as a total of 1246 votes that was recorded in favour of the PDP. After it had deducted the illegal votes from both sides, the panel held that Adeleke got a total of 253,777 valid votes, ahead of Oyetola who it said got 253,476 valid votes in the September 22, poll.

The tribunal went ahead and nullified the Certificate of Return that was issued to Oyetola by INEC, and ordered the issuance of a fresh one to Adeleke. Though a third member of the panel, Justice Ayinla Gbolagunte concurred with the lead judgment and also declared Adeleke winner of the Osun governorship election, however, Chairman of the tribunal, Justice Ibrahim Sirajo, said he disagreed with the verdict, insisting that the petition lacked merit and ought to be dismissed. Justice Sirajo held that the tribunal lacked the powers to subtract votes that were declared invalid. He held that under section 140 of the Electoral Act, the tribunal was only empowered to order a re-run or fresh election where it was established that there was substantial non compliance to the Electoral Act. Meanwhile, in his appeal, Oyetola, faulted the majority judgment, saying it was not only perverse, but also replete with contradictions .

He argued that the lead judgment was not supported by evidence that was led by the petitioners. Oyetola prayed the appellate court to uphold the dissenting verdict by the tribunal’s Chairman. In his first ground of appeal, Oyetola contended that the majority decision of the tribunal amounted to a nullity as it was written and delivered by Justice Obiora who he said did not participate in all the proceedings of the tribunal and was not present when all the witnesses gave evidence. He told the appellate court that Justice Obiora was absent on February 6 when the respondents witnesses (RWs) 12 and 13 – Ayoola Soji and Oladejo Kazeem – testified and tendered exhibits, which the tribunal admitted in evidence. The appellant argued that having not attended the sitting, Justice Obiora, could not have seen the two witnesses to be able to examine their demeanour as required. He said it was therefore unlawful for the judge to have authored a judgment in which he reviewed the evidence that was given by the witnesses.

“The writing of and or the participation of the honourable justice P. C. Obiora in the writing of the judgment of the lower tribunal of 22nd March 2019 and delivery of same, vitiates the entire judgment”, he argued. The appellant further argued that the tribunal, in its majority judgment, erred in law and acted without jurisdiction when it accepted the petitioners’ complaint of non compliance with the provisions of Electoral Act in relation to the September 22, 2018, governorship election, and on that basis proceeded to nullify his victory. He said the tribunal also acted without jurisdiction by basing its decision to uphold the petition and set aside the return of the appellant on the basis of allegation of non-compliance with the Electoral Act, in relation to the September 22 exercise.

The appellant argued that no where in the entire petition did Adeleke and the PDP complained about non-compliance with the provisions of the Electoral Act in relation to the initial poll. He said the only ground in the petition that touched on alleged non-compliance with the provision of the Electoral Act was with respect to the rerun election that held on September 27. Oyetola insisted that the tribunal contradicted itself in its conclusion, in page 191 of the majority judgment, to the effect that the information omitted by the election officers in the Forms EC8A in the 17 polling units, where the tribunal voided results, were essential for the proving of over-voting.

He argued that, having earlier found that accreditation was not done on Form EC8A and that same (accreditation) could not be proved without voters’ register, the tribunal was therefore bereft of the jurisdiction to overrule itself. The appellant further argued that the tribunal erred in law when it cancelled elections in 17 polling units on the mere allegation of improper ballot accounting and accreditation details.

He argued that since all the witnesses called by the petitioners admitted that the voting process was regular; that votes scored by each party were publicly announced after counting and that the announced scores of parties were truly reflected on Forms EC8A tendered by petitioners, the tribunal, was wrong to have proceeded to cancel results. “All petitioners’ witnesses testified and admitted that petitioners were not short-changed regarding the scores recorded for them in each Form EC8A tendered, and that no addition of votes was reflected in favour of the appellants.

“The lower tribunal had rightly found that there was no over-voting; there was no voiding of valid votes; that accreditation can only be done through voters’ register; that no single ballot paper was tended before it. “By cancelling of elections in 17 poling units the lower tribunal acted without jurisdiction. By deciding as aforesaid, the lower tribunal discountenanced Section 139(1) of the Electoral Act”, Oyetola argued. He faulted the tribunal’s decision to void the rerun election when the petitioners did not prove that there were elections in the seven polling units where the rerun election took place or that the results were wrongly cancelled.

The appellant said the petitioners did not plead nor adduce evidence that the presiding officers of the affected seven polling units had on their own approved the elections at the polling units, adding that the petitioners did not tender results from the seven polling units. He contendes that the petitioners failed to call their agents from the affected polling units as witnesses, a well as to tender documentary evidence to show that it was the returning officer that unilaterally cancelled the elections. Oyetola argued that the tribunal acted outside its jurisdiction, erred in law and arrived at a perverse decision when it engaged in calculating and subtracting from election results to arrive at proclaiming Adeleke winner. According to him, by engaging in computation of votes, the tribunal, allocated more votes to the petitioners than they originally claimed.

He told the appellate court that while the petitioners summed the total vote of parties after the deduction of the cancelled votes, at: APC, 241,335 and PDP, 246,634, the tribunal, in its own computation and deduction, allocated 253,452 votes to APC and 253, 777 votes to PDP. The appellant also argued that the tribunal contradicted itself when, on one hand, it nullified the re-run election of September 27, and on the other hand, went ahead to void the election of the appellant on the same election. “Having rightly held that it lacked the jurisdiction to strike down and nullify the approved Guidelines and Regulations for the Conduct of the Osun State Governorship Election 2018, made by INEC, the tribunal misdirected itself in law and came to a perverse decision by going ahead to nullify the rerun election.” Vanguard